For 25 years, the United States Court of Appeals for the Second Circuit has given employers broad discretion to reconsider a promotion test whose results favor one race over another. Judge Sonia Sotomayor followed this binding precedent when she rejected several firefighters’ claim of reverse discrimination in the now-famous Ricci v. Destefano case, as she is obliged to do as a lower-court judge. Yet, as the Justices showed in today’s 5-4 decision in Ricci, they are not bound by the same constraints that bound Judge Sotomayor. Today’s ruling creates a new standard which says that an employer’s decision to toss out a hiring test must have a “strong basis in evidence” showing that the test preferred one race over another. The Supreme Court has powers that Judge Sotomayor does not, and it used that power today. Unfortunately, conservatives will try to use today’s decision to attack Sotomayor, but these attacks have no basis. Sotomayor followed the law that was in place at the time of her decision in Ricci, and she should be commended for demonstrating proper judicial restraint.
Sen. John Cornyn (R-TX) put out a statement arguing that “all nine justices were critical” of Sotomayor.